MILITARY: Marine Corps striking out in Haditha prosecutions

Grayson's acquittal on Wednesday prompts call for reconsideration of two remaining cases

By MARK WALKER - Staff Writer | Thursday, June 5, 2008 6:18 PM PDT ∞

NORTH COUNTY ---- Six of eight Camp Pendleton Marines charged with murder and other offenses in the killing of 24 Iraqi civilians in 2005 have been exonerated, raising fresh questions about whether the prosecutions ever should have occurred.

The acquittal of 1st Lt. Andrew Grayson on Wednesday and the earlier withdrawal of charges against five other defendants also are prompting some to ask if the military justice system is stacked in favor of the accused troops.

Grayson's acquittal came after a Camp Pendleton jury of seven officers ruled he was innocent of any offenses related to his role in the aftermath of the Haditha killings.

The 27-year-old Grayson was accused of lying to investigators about the civilian deaths and later trying to fraudulently get out of the Marine Corps.

His acquittal and the dropping of charges against the other original defendants should cause the Marine Corps to reconsider whether the remaining two cases should go forward, said David Brahms, a Carlsbad military attorney and retired Marine general who once served as the service's top legal adviser.

"If I'm sitting in the power seat, I would be asking my lawyers to step back, take another look and get a second opinion," Brahms said Thursday.

"I would say it's time to get a senior staff judge advocate with an impeccable reputation and experience with big cases and ask him to review everything," he said.

The remaining defendants are Lt. Col. Jeffrey Chessani, the battalion commander at Haditha, and Staff Sgt. Frank Wuterich.

Chessani is accused of dereliction of duty for failing to order a full-scale investigation into the incident. Wuterich faces nine counts of voluntary manslaughter and related offenses.

One of Chessani's attorneys, Brian Rooney, also suggested that after three of the officers that his client commanded have been exonerated, the Marine Corps needs to contemplate whether the case against Chessani warrants going to trial next month.

"The commanding general has to pause and start thinking whether the case should go forward," Rooney said during a telephone interview. "The cases are distinct, but all of them fall under the rubric of Haditha and there is a momentum toward all these guys being exonerated."

Wuterich's attorney, Neal Puckett, said that Grayson's acquittal is "one more nail in the coffin of an investigation that was flawed from the outset."

"The evidence has not improved for the government to go forward against Staff Sgt. Wuterich," Puckett said. "We still anticipate them losing because the Marines did what they were trained to do that day."

Wuterich led the squad of Camp Pendleton Marines responsible for the civilian deaths that came after a roadside bomb destroyed a Humvee on the morning of Nov. 19, 2005, killing a lance corporal. The civilians were killed as the Marines searched for the bombers and those responsible for subsequent small-arms fire.

Wuterich's trial is delayed until a military appellate court rules on the government's appeal of a judge's ruling that it was not entitled to outtakes of a CBS television "60 Minutes" interview with the Connecticut native.

Jane Siegel, a San Marcos former Marine attorney who practices military law, said she believes political pressure resulted in the Haditha Marines facing charges.

"These guys were charged as a matter of political accountability because Washington, D.C., did not want to be seen as sweeping an alleged war crime under the rug," she said.

The military jury that heard Grayson's case, as well as those who may hear Wuterich's and Chessani's, are able to separate fact from fiction, she said.

"They're the last bastion of the defense," she said. "They understand that people die in war and that when you're in a hostile environment and tired and scared, you don't have a summit meeting about the rules of engagement."

Siegel said that halting the cases pending a deeper review by an experienced legal adviser, as some are calling for, is "a wonderful idea."

The likelihood that the general overseeing the Haditha prosecutions, Camp Pendleton's Lt. Gen. Samuel Helland, will put the cases on hold for review is very low, said Eugene Fidell, president of the National Institute of Military Justice in Washington and a military law professor at Yale and American universities.

"That's very unlikely to happen," Fidell said during a telephone interview. "But as each case goes south for the government, the inclination is to question if the system is functioning properly, and that's becoming a more pressing question."

Some may believe the acquittals and withdrawals of charges suggest the military justice system is failing, while others can fairly conclude that justice is being reached as the facts of each case are fully aired, he said.

As for political pressure from Washington, Fidell pointed to the comments of U.S. Rep. John Murtha, D-Pa., who said before anyone was charged that the Marines had "killed in cold blood."

"It does no favor to the military justice system to have members of Congress taking a position on a pending case," he said.

By policy, prosecutors will not comment on the Haditha cases nor will Helland.

After his acquittal, Grayson said he stands by Chessani.

"His beliefs and morals led that battalion each time we were deployed," Grayson said. "I was proud to serve under him."

Wuterich, he said, found himself under attack and did his best to react to the threat he and his squad faced.

"Second-guessing a Marine's actions in combat is questionable at best," Grayson said.

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.